People v. Ingram, No. 76-376

• Docket Nº: No. 76-376
• Citation: 582 P.2d 689, 40 Colo.App. 518
• Case Date: April 06, 1978
• Court: Court of Appeals of Colorado

Page 689

582 P.2d 689 40 Colo.App. 518 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Michael INGRAM, Defendant-Appellant. No. 76-376. Colorado Court of Appeals, Div. I. April 6, 1978.
Rehearing Denied May 18, 1978.
Certiorari Denied Aug. 14, 1978.

[40 Colo.App. 519] J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Deborah L. Bianco, Linda Palmieri Rigsby, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Carol L. Gerstl, Deputy State Public Defender, Denver, for defendant-appellant.

BERMAN, Judge.

Defendant, Michael Ingram, appeals from a denial of his motion pursuant to Crim.P.

Page 690

32(e) to withdraw pleas of guilty and from the sentence imposed on those pleas. We affirm the denial of defendant's motion to withdraw his pleas, but vacate defendant's sentence and remand for resentencing.

[40 Colo.App. 520] Defendant was charged with first degree burglary with intent to commit rape, felony menacing, and attempt to commit rape. On February 24, 1975, he withdrew his previous pleas of not guilty and entered pleas of guilty to the first degree burglary and attempted rape charges. The menacing charges were dismissed. Before accepting the guilty pleas, the trial court ascertained that the defendant understood: (1) That his plea of guilty to the first degree burglary charge could result in five to 40 years imprisonment, to be served either at the State Penitentiary or the State Reformatory; and (2) that his plea of guilty to the attempted rape charge could result in one to five years imprisonment and a fine of $1,000 to $15,000. The court subsequently ordered a psychiatric evaluation of defendant's suitability for commitment under the Sex Offenders Act.

Prior to sentencing, defendant moved to withdraw his guilty pleas on several grounds, including allegations that the trial court's advisement of potential penalties was defective. After a hearing, the court denied the motion. At the same hearing, defendant's attorney requested that the court sentence defendant to an indeterminate commitment to the State Hospital as a sex offender, for both offenses. The court, however, sentenced defendant to a term of not less than 30 nor more than 40 years in the Colorado State Penitentiary for the first degree burglary offense, and, as a sex offender, for a period of one day to life in the Colorado State Penitentiary for the attempted rape offense, the sentences to run concurrently.

I.

Preliminarily, we reject defendant's contention that the trial court's failure to advise him of possible sentencing under the Sex Offenders Act prior to accepting his pleas of guilty entitles him to withdraw the pleas.

Section 16-13-204, C.R.S.1973, does require that before accepting a plea of guilty from a defendant charged with a sex offense, "the court shall, in addition to any other requirement of law, advise the defendant that he may be committed to the custody of the department, including any penal institution under the jurisdiction of the department, as provided in 16-13-203." Section 16-13-203, C.R.S.1973, permits commitment of a sex offender for an indeterminate term of one day to life.

Nonetheless, the record now before us demonstrates that in the instant case defendant's counsel not only acquiesced to a preliminary psychiatric examination for sex offender evaluation and requested that the court sentence defendant as a sex offender, but at the...